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Summary of Amicus Curiae to the Constitutional Court of Colombia urging implementation of decision in favour of the Wayúu Indigenous people affected by the Cerrejón coal mine

Overview

Glencore and Anglo American initiated arbitration claims against Colombia in a secretive tribunal outside of the national legal system in 2021 to avoid implementation of a Colombian Constitutional Court decision from 2017. This decision favours Wayúu Indigenous and Afro-descendant communities and the protection of the Bruno River. It suspended expansion of the Cerrejón coal mine, Latin America’s largest open-pit thermal coal mine, pending the outcome of a technical review of its social and environmental impacts.

The Cerrejón open-pit thermal coal mine, Latin America’s largest, has operated in La Guajira, in the north of Colombia for almost four decades. The company Carbones del Cerrejón is now owned by the Swiss transnational Glencore. However, during the last two decades and until early 2022, Glencore, Anglo American and BHP had equal shareholdings in the company.

For years, local communities in La Guajira and Colombian civil society organizations have documented human rights violations and environmental human rights violations and environmental impacts from the mine. These include the dispossession and displacement of up to 35 Wayúu Indigenous and Afro-descendant communities from their ancestral territories, with irreparable cultural consequences. Coal extraction has also contaminated air, water and soil, including diverting, interfering with, or drying up about 44 local streams, including the Bruno, a major tributary of the Ranchería River and the most important water source in this dry region.

Glencore and Anglo American brought their suits against Colombia using a system formally known as investor-state dispute settlement (ISDS), which is written into some 2,800 trade and investment treaties. The companies used the bilateral investment protection treaties with Switzerland and the United Kingdom respectively. ISDS gives foreign investors unilateral recourse when they believe that measures taken by a state negatively affect their interests.

Access to the Summary of the Amicus at this link: SUMMARY, Amicus Colombia (Sep, 2022)

Access the complete Amicus (only in Spanish) at this link: AMICUS CURIAE _ Colombia, Demanda ISDS, Arroyo Bruno (Agosto, 2022)

 

 

WEBINAR: Corporate courts – communities fight back

Corporate courts (formally known as ISDS or Investor-State Dispute Settlement) are secretive tribunals written into trade deals that enable corporations to sue countries for billions. They are increasingly being used by fossil fuel companies to challenge climate action.

This event was part of a nationwide day of action by UK activists against corporate courts on 18 September 2021. Across the country people took to the streets to call on the UK government to drop ISDS from its trade policy; and to stand in solidarity with communities around the world fighting the environmentally and socially devastating extractive projects often at the heart of ISDS disputes.

Webinar speakers included:

Aldo Orellana López: member of TerraJusta and a Bolivian activist and journalist focused on environmental issues, extractivism and multinationals in Latin America – including on the use of ISDS to threaten the expansion of the Cerrejón mine, the biggest open-pit coal mine in Latin America

Maria Rita D’Orsogna: Italian mathematician, environmentalist and activist, central to the mobilization against the oil drilling project at the heart of the Rockhopper v Italy case, brought under the controversial Energy Charter Treaty

Nicolás M. Perrone: ISDS expert and author of “Investment Treaties and the Legal Imagination: How Foreign Investors Play By Their Own Rules”

Webinar organised by: Global Justice Now and War on Want

Webinar: Continental synergies in times of global challenges

In June 2021, Pax Christi International invited TerraJusta to its event: “Continental Synergies in Times of Global Challenges”, to talk about “Extractivism as a global model and its impacts on communities and the environment in Latin America”.

In its presentation, TerraJusta spoke about the causes and consequences of extractivism, neo-extractivism, and extrahections, based on concepts developed by Latin American researchers and activists. From there, we address two cases that TerraJusta accompanies as members of the London Mining Network (LMN), the case of the Cerrejón coal mine, in La Guajira Colombiana (owned by Anglo American, Glencore and BHP); and the case of the Antapaccay copper mine, in Espinar, Peru (owned by Glencore). We also talked about corporate power and the recent Investor-state dispute settlement (ISDS) that Anglo American and Glencore filed against Colombia at ICSID, for not allowing them to extract coal from the bed of the “Arroyo Bruno.” Finally we talk about alternatives and what we can do, including the Binding Treaty on business and Human Rights that is negotiated at the UN Human Rights Council and that TerraJusta supports.

You can see the presentation in this video:

Webinar on Extractivism, Human Rights and ISDS: Hard Law vs Soft Law

Aldo Orellana Lopez of TerraJusta joined panellists Carla García Zendejas (Center for International Environmental Law), Jen Moore (Institute for Policy Studies), and Vidalina Morales (Cripdes El Salvador). With reference to particular examples in Latin America they discussed arbitration suits (Investor State Dispute Settlement) which have been brought by extractive industries in relation to licenses and operations which are being resisted by communities defending their territories, environment and human rights. Aldo spoke in particular about the ‘Aymarazo‘ in Peru and the legacy of Chevron-Texaco in Ecuador.

The webinar was hosted by the Rosa Luxemburg Foundation, the Transnational Institute and Transform Europe. It was facilitated by John Cavanagh of the Institute for Policy Studies.

Rights for People, Rules for Corporations

The public is well aware by now that business-as-usual is not an option if we are to avert ecological breakdown and move to a fairer, safer and more peaceful way of co-existing on the planet.

Business-as-usual means maintaining trade rules and treaties that give corporations enormous power to endlessly extract natural resources. Business-as-usual means sacrificing communities and ecosystems in those places to feed rampant consumerism for the profit of a powerful minority.

We reject business-as-usual. We want a #BindingTreaty on Transnational Corporations and Human Rights and we are building solidarity across countries and movements to demand Rights for People, Rules for Corporations.

Video produced in collaboration with Global Justice Now and London Mining Network. Thanks to Coal Action Network and Colombia Solidarity Campaign.

PRESS RELEASE: Supreme Court Accepts Appeal of Peruvian Human Rights Defender and Overturns Sentence.

Cochabamba, Ottawa, Puno, Washington, October 10th 2018.

On Friday October 5th, the Peruvian Supreme Court accepted Walter Aduviri’s appeal and overturned the sentence against him. Aduviri was a spokesperson for the Aymara indigenous communities during the 2011 Aymarazo protests in Peru against the proposed Santa Ana mining project owned by Bear Creek Mining Corporation from Canada. The Supreme Court ruled that Aduviri’s appeal was well founded and ordered that the case should begin again from zero in the regional courts.

Both local and international civil society groups have been following the case closely because of two dangerous legal precedents in the case that risked weakening the broader movement in Peru for indigenous rights and in defense water, land and territory. For now, those precedents have been blocked.

This was the last in a string of legal cases against community leaders that followed the 2011 protests. Days prior to the court’s decision, Executive Director of Puno-based human rights organization, Derechos Humanos y Medio Ambiente’s (DHUMA) Cristobal Yugra Villanueva, warned about the implications of the ruling. He said,

This decision will be precedent-setting for the future of social protest in Peru. It will affect whether or not Indigenous peoples feel free to protest, despite the fact that this right is guaranteed by the Peruvian Constitution.  

A campaign by local and International organizations has been underway for several months  to highlight this emblematic case. In September of this year, more than 130 organizations around the world signed a public statement condemning the criminalization of social protest and calling for the protection of human rights defenders working in defense of their land, water and territory. The public statement made direct reference to Aduviri’s case and called on the Supreme Court to acquit him of all charges.

It stated:

We recognise that Walter Aduviri’s case is not an isolated one. Rather, it forms part of a pro-mining agenda in Peru. Another example of this architecture is the constant declaration of States of Emergency in mining zones. These States of Emergency suspend the most fundamental constitutional rights of the population, bringing with it political repression; criminalisation and the general stigmatization of social organisations and communities. As in Peru, across the continent, multinationals enter territories with the sole intention of converting common goods into financialised resources, leaving communities and ecosystems destroyed in their wake. Where there is resistance, the state systematically represses, imprisons and even creates the conditions for the assassination of defenders.

The pleas for Aduviri’s acquittal appear to have worked. On the morning of Friday October 5th, in the presence of his lawyers, the Court overturned Aduviri’s sentence freeing him from the threat of immediate incarceration.

According to DHUMA:

In the recent judicial decision, the Court has recognized that the criminal proceedings brought in first and second instances before the High Court in Puno, were characterized by a clear violation of due process.  In the case of Walter Aduviri and the Aymarazo social protests, the judges did not respect the charges originally filed by the public prosecutor, but rather ‘decoupled’ or deviated from these charges and convicted him as ‘indirect perpetrator’. This was illegal and this has been our position since the beginning of the legal process.

Lawyers at DHUMA have accompanied many of the other Aymara community members that faced judicial persecution following the Aymarazo social protest. Their relentless work in defense of the rights of indigenous communities in Peru was recognised just last week when their representatives received the prestigious Letelier Moffitt international human rights award from the Institute for Policy Studies in Washington DC.

Bear Creek Mining Corporation, after the Aymarazo, also filed a multi-million dollar compensation claim against Peru at ICSID, the investment arbitration arm of the World Bank, for the cancellation of the Santa Ana mine. In December 2017, the same month in which the courts of “justice” condemned Aduviri, ICSID ruled in favor of Bear Creek and ordered Peru to pay more than USD$30 million in compensation, including legal fees and interest. Local community members have been calling for the compensation not be paid but rather for communities to be compensated for the economic losses and social upheaval caused by the presence of the mining company. This debate will continue in Peru in the weeks and months ahead.

NOTE:

On October 7th, 2018, Aduviri was elected as governor of the department of Puno. Up until days prior to the election, Aduviri was the favoured candidate but it was unclear as to whether he would able to run in the elections. The Supreme Court’s decisions enabled his participation.

DHUMA -Human Rights and Environment (Derechos Humanos y Medio Ambiente)

The Democracy Center

The Institute for Policy Studies (IPS)

MiningWatch Canada

 

CONTACTS:

Radio interviews about the ‘Aymarazo’

In this series of three interviews with Melbourne radio station 3CR Democracy Center researcher and campaigner Thomas Mc Donagh updates listeners on the ‘Aymarazo’ campaign as it developed over the second half of 2018.

This case, emblematic of the criminalisation of social leaders resisting extractive projects across Latin America, culminated in the October 5th Supreme Court ruling that overturned the prison sentence against Aymara indigenous spokesperson Walter Aduviri after a 7-year legal battle.

The interviews cover the background to the case in a 2011 regional strike that successfully blocked a proposed silver mine owned by Canadian multinational mining corporation Bear Creek; the corporations’ counter-attack using the Investor State Dispute Settlement (ISDS) arbitration tribunal system; and the long struggle of communities to clear the names of their leaders and spokespersons dragged through the courts in what amounted to a blatant process of judicial persecution.

He specifically focuses on the court proceedings against indigenous social leader Walter Aduviri, sentenced in Nov 2017 to seven years in prison and a fine of over $500,000 and the international solidarity campaign mobilised, not just to push for the acquittal of Aduviri, but also for an end to the criminalisation of protest against extractive industries in the region more broadly.

You can listen to the interviews on 3CR’s own website here

All three interview segments are available in the playlist below. If you click on the Soundcloud link you will also find a further interview on the case from 2017 (in English and Spanish) with Real World Radio.

Video Conference – International Solidarity Campaign with the anti-mining struggle in El Salvador

El Salvador – When The Seeds Of Resistance Bloom

If ever there was an example of how the seeds of a local battle flowered into a formidable global campaign, it was this one. At a time when organised dissent is both under attack and more urgent than ever, we not only need to celebrate the victories that involve genuine international solidarity, we need to learn from them.

More on this topic

Video Conference - International Solidarity Campaign with the anti-mining struggle in El Salvador

We sat down with five (of the many) people that have been deeply involved in this titan effort to reflect on what they achieved and how, and the lessons that they have learned in the process.

Our interviewees were Vidalina Morales from the Economic and Social Development Association of Santa Marta (ADES); Pedro Cabezas from Association for the Development of El Salvador, (CRIPDES) and Saul Baños from the Foundation for the Study of the Application of the Law (FESPAD) – all three are member organisations of the National Roundtable against Metallic Mining in El Salvador (Pedro Cabezas was also communications coordinator for the International Allies); Manuel Pérez-Rocha from the Institute of Policy Studies in Washington DC; and Jen Moore from Mining Watch Canada.

We focus here in particular on what we can learn from the international campaign against the World Bank case, but also look at some aspects of the simultaneous effort to support the anti-mining struggle on the ground in El Salvador. The international legal case was just one of a range of intervention strategies used by the corporations involved. The organising effort that successfully countered all of them holds valuable lessons for strategic campaigning everywhere.

More on this topic

The Anti-Mining Struggle in El Salvador - Corporate Strategies and Community Resistance

ISDS – Investor State Dispute Settlement

In 2004, after two years of searching for gold in El Salvador, the Pacific Rim Mining Corporation requested permits to begin mining close to the Lempa River. After several years of negotiations, political manoeuvring and conflicts with the local communities that tragically cost the lives of four environmental activists –one of whom, Dora Alicia Recinos Sorto, was eight months pregnant- the request was declined on the basis that the company had not met the necessary regulatory requirements and a nationwide moratorium on all new mining projects was put in place.

The company cried foul. They maintained that they had been lead to believe that there was government support for their project and the change of mining policy was thus unfair and illegal and they should be compensated to the tune of the market value of the unexploited gold – $314m later reduced to $250m. They initiated an investor-state dispute settlement (ISDS) case at the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID).

This ISDS system, despite existing for over 50 years, has only in the last ten years become a weapon of choice for multinational corporations. Over this time, the number of ISDS cases has exploded with 2015 setting an all time record of 74 new cases in just one year.

Pacific Rim is a Canadian company, also registered in the Cayman Islands tax haven. In its first attempt to bring the ISDS case against El Salvador it tried to use investment protections in the Free Trade Agreement between the US and Central America and the Dominican Republic (DR-CAFTA). To do so it set up a post-box address in the US state of Nevada. In 2012, ICSID declined jurisdiction under DR-CAFTA and in the Tribunal’s decision, Pacific Rim in the USA was described as ‘more akin to a shell company’. However, despite this corporate manipulation of the legal system, the tribunal would later uphold jurisdiction under El Salvador’s domestic investment law and allow the case to proceed. (The following year El Salvador amended this law, no longer giving transnational corporations recourse to international tribunals.)

By 2013, Pacific Rim was in financial trouble and was bought out by Oceana Gold from Australia. By late 2016, after a long international campaign, the ICSID tribunal finally ruled against the company and ordered it to pay $8 million towards El Salvador’s more than $12million in legal fees. The ruling was hailed as a major victory for the struggles in El Salvador and internationally.

More on ISDS

It came at the end of several years of international campaigning and would pave the way for the outright ban on mining in the country that followed a few months later. The campaign holds a number of lessons – particularly with regard to how we can connect local and global struggles effectively.

Narratives and Messaging

We should never underestimate a powerful narrative. This universal truth for campaigners was also one of the major lessons for our interviewees.

Mining pollutes and mining kills. Credit: Genia Yatzenko

Water and Sovereignty – Connecting local issues to systemic ones

The story of a small Central American nation’s struggle to put the health of its population above the profits from gold mining was always going to grab some international attention. But when combined with the ways in which international governance institutions were being manipulated in favour of corporate interests, it became not just a powerful unifying narrative, but a story everybody wanted to tell.

More on movement-building in Latin America

Ten Years After the Defeat of the Free Trade Area of the Americas (FTAA) – Lessons for Current Struggles

According to Manuel Pérez-Rocha, “we were able to weave together the strands of this narrative, connecting water, health and the local defence of resources and territory to the imposition of corporate power by means of instruments such as ICSID…we all worked based on this narrative”. For Pedro Cabezas, this coherent narrative reflected “the shared vision of all of the actors involved in the struggle”. And so provided an important point of unity for the campaigners.

If we divide it in two, the first part of this narrative was about water, with the salient points being: El Salvador is a water stressed country; conditions are not right for mining in El Salvador; pollution from mining jeopardizes our water and therefore our health; mining puts the Lempa River – the primary source of water for more than half the population- at risk.

While Pacific Rim-Oceana Gold and mining proponents predictably attempted to frame the issue as an economic one – “it’s a no-brainer for such a resource-strapped government to cash-in on its underground mineral wealth” – the campaign managed to constantly bring the focus of debate back to the local defence of water and health – both in local and international coverage.

For Cabezas “focusing on the defence of water was always going to resonate at all levels – political, social, academic and economic….because of the grave water crisis that the country is going through….a crisis widely documented not only by government and local academic institutions, but also by international bodies such as the UN”.

For Jen Moore, connecting the idea of “water being more precious than gold”…..and “the unjust means that corporations have to bully countries around in the globalized economy today” provided a real coherency between the local, the national and the international. And having a narrative that combined local concerns with global ones meant that a real diversity of groups could engage with the issues from a diversity of entry points or perspectives.

Protest in El Salvador. Credit Genia Yatzenko

The second strand of the messaging strategy was to focus on the issue of sovereignty and self-determination. Privatised justice for big business/unaccountable corporate-dominated tribunals/a weapon for Northern corporations to pressure governments: all of these ways of characterizing the free trade and investment rules system would resonate strongly in any context. But in post-colonial Latin America, in a country well used to Northern aggression, they were particularly powerful.

Working with international civil society experts, such as the Center for International Environmental Law, the Institute for Policy Studies, Mining Watch, and Oxfam, as well as academics from the University of Central America in El Salvador, the American University and others, the campaign was able to base its analysis of the trade and investment system on solid research.

This complex system was then translated into terms understandable to non-experts by making the connection very clear between the trade and investment regime and the issues that directly affect people’s lives – such as water and public health.

When Salvadoran attorney Yanira Cortez visited Canada in 2015, for example, she repeatedly stated that the amount being demanded in compensation by Pacific Rim in the ISDS case was equivalent to three years of the Salvadoran national health, education and public safety budgets combined.

Delivering the message – Making it emblematic

A clear, evidence-based narrative is only as powerful as the ways in which its delivered and amplified.

If you do a Google search with the terms ‘Pacific Rim’ and ‘El Salvador’, you get over 359,000 results (and over 159,000 if you search ‘Oceana Gold’ and ‘El Salvador’). The figures speak for themselves.

The case has been covered by publications as diverse as: the Nation (several times), the Guardian (several times), the Huffington Post, the Financial Times, the Washington Post, CBC, Reuters, the New York Times, the BBC, the London Review of Books, CounterPunch and Upside Down World – not forgetting Xinhuanet in China and Kalikasan in the Philippines, Le Monde in France, Al Jazeera, and TeleSur.

Even a folk SONG has been written about the case.

The extent of the coverage the case achieved was a result of working with a multitude of diverse allies on the one hand, and on the other, by connecting the case to on-going international campaigns on related issues. These included debates around new free trade deals like the TPP and TTIP; how mining and water relate to climate change and broader sustainability debates; as well as issues related to corporate accountability and human rights. Positioning the case in the international public imagination as a symbol of some of these broader struggles helped turn a localised struggle in to a powerful global symbol.

One very concrete result of the extensive international coverage was that it obliged local actors in El Salvador, including politicians, to take a position on the issue.

According to Saul Baños “a lot of local media outlets are co-opted in the service of local elites…the case was getting more attention outside the country than inside”. For him, the persistence of international allies in raising the profile of the issue “not only helped to explain the risks of the ISDS system but also meant that local politicians cannot avoid the issue.”

Another result was indirect pressure on the ICSID tribunal itself. Given the profile of the case and the coverage it was receiving, it is not surprising that one of the three tribunal members commented afterwards, off the record, that “civil society pressure in this case has been essential.” In the end they were passing judgement not just on a single case based on a local issue, but on all that the case came to represent after several years of ‘globalising the struggle’.

Alliances and Solidarity

While the communities played a leading role in their territories, it didn’t end there – [the struggle] went national, and then it went global”. Pedro Cabezas.

Given the nature of the El Salvador case, with one front being fought on the ground in Central America, and the other internationally, it was inevitable that a diverse set of actors would be involved. What was less clear though was just how broad and diverse it would become, and how those alliances would function.

Strength in diversity

From anti-mining activists in Canada to the Catholic Church hierarchy of El Salvador, and from the Maritime Union of Australia to the Central American University, for our interviewees, one of the major lessons from the campaign came from working alongside an extremely diverse group of allies.

For Vidalina Morales: “it’s not very common that communities are in agreement with the State. In terms of the [ISDS] lawsuit…the communities and their organizations were able to find common cause together with the State and its defence lawyers; we were all in close coordination.”

At the closing stage of the ISDS case, for example, while the company was doing everything in its power to postpone the result so that it could hold out for a negotiated settlement1 with the government (i.e. some policy concessions or to allow the gold mine to go ahead), simultaneous protests were coordinated by civil society groups outside the World Bank offices in Washington DC and in San Salvador demanding that the tribunal delay no further and give its final result, while the government and its lawyers continued demanding the same thing inside the tribunal. A week later it did, in El Salvador’s favour.

Working hand in hand like this with the international investment law firm, Foley Hog, was another revelation for our interviewees. According to Perez Rocha in the run up to the ICSID tribunal’s decision, Foley Hog was “very open to civil society collaboration and figuring out the best ways to collectively apply pressure on the tribunal”. A team of investment lawyers rolling up their sleeves together with civil society groups was surprising to campaigners very much accustomed to seeing them as part of the problem.

Perez Rocha was also surprised by some other collaboration opportunities. Perhaps the most unexpected of these was with the US State Department. In the early stages of the ISDS case, after some pressure from the law firm representing El Salvador and civil society groups, the State Department agreed to submit an informed opinion to the ICSID tribunal to the effect that Pacific Rim in the USA was indeed just a shell company and shouldn’t be protected by CAFTA – an opinion the tribunal would later agree with.

For Perez Rocha, this was further evidence that “[the campaign] was a confluence of actors of very different kinds – this wasn’t just a civil society fight – we worked methodically with government officials, with the law firm, with the media and with the church”.

The Role of Coordination

While the Roundtable against Metal Mining in El Salvador has its own coordination mechanism – a committee made up of representatives of five of the eleven core organizations takes on the role- coordination with such a diversity of international allies was bound to present other challenges.

For two years, between 2013 and 2015 Pedro Cabezas was responsible for coordination between the international allies and the Roundtable in El Salvador. For him, having this dedicated coordination role allowed them to improve communication between the two networks.

Meanwhile, a group called International Allies against Mining in El Salvador, coordinated primarily by Mining Watch Canada and the Institute for Policy Studies (IPS) was established and to this day maintains regular communication with the Roundtable in El Salvador. The International Allies have monthly meeting calls and major decisions are sent to the Roundtable for feedback. A websitesocial media and mailing list are used to communicate campaign updates

Despite these coordination mechanisms, for Jen Moore, among the biggest challenges were “maintaining good, fluid communication between international allies and national and local organizations….It requires a lot of intentionality and effort”. These challenges were overcome thanks to “the visits between the countries, persisting with the regular meetings and making a real effort to maintain permanent communication”. This allowed them to continuously refine strategy and allowed international allies to be prepared at crucial moments in the campaign.

Jen Moore was also aware that this coordination is made a lot easier when there are NGOs with paid staff involved. This allowed her, for example, to dedicate the necessary time to coordinate with other Canadian groups and to maintain a permanent link with the international coalition and the Roundtable. “These processes are not pretty. Differences always arise, but we showed that with really intentional coordination, a lot can be achieved”.

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“Two types of solidarity”

According to Cabezas, given that many of the groups working on the campaign internationally had a history of working in El Salvador dating back to the country’s civil war (1980-92) they had established personal and working relationships with members of the Roundtable. Groups such as Sister Cities, the Share Foundation, CISPES and Oxfam from the US; SalvAide from Canada; and the Romero Christian Initiative from Germany had a history of human rights work during the war, including supporting refugees (many of whom would later return to form the communities now resisting mining projects). According to Cabezas “their role had evolved over the years and when mining came along, they saw the abuse being carried out internationally by the corporation – and they got involved”.

Protest in Canada against the ISDS case

According to Perez Rocha “there was a lot of room to manoeuvre and a lot of flexibility because of the trust that existed between the organizations and the Roundtable”.

Perez Rocha’s organisation, the Institute for Policy Studies (IPS), had given their prestigious Letelier-Moffitt Human Rights Award to the El Salvador Roundtable against Metallic Mining in 2009. In accepting the award, Vidalina Morales said that it was an important international act of recognition that showed “the just, worthy and legitimate nature of our struggle”. Not only this, the prize was also an important step in consolidating the relationship between the Roundtable and IPS that would be crucial in the international campaign against the ISDS case.

For Vidalina Morales the “active support of the international community is fundamental for the struggles of our people. For us there is no doubt that this is the only way that we will be able to advance in the emancipatory process of our people. Solidarity is more necessary and urgent than ever”. For Morales solidarity is “something that allows us to stand alongside the other person both in the good times and during the difficult times…..solidarity is mutual support.”

Perez Rocha described “two different types of solidarity”. For him, one of these is more common among development agencies where there is a vertical relationship between funders and the communities being funded. And the other, that he espouses, is when “money is not at the centre of the relationship; [in these relationships] there is one overarching struggle with shared objectives.”

Cabezas agreed, “when donors and development agencies are involved, they often want to determine strategy, and this sometimes causes conflicts”. When asked about how this was overcome in the campaign he continued “through constant careful negotiation and a lot of patience”. For Cabezas international groups “should engage with the case in their own spaces e.g. the company being Canadian meant there was a role for Canadians….but priority should be given to being a conduit for the voices of frontline communities”.

For Jen Moore, the role of international solidarity organisations was quite clear: “remaining in communication, staying informed, visiting El Salvador when possible and then keeping our own social base and the media informed…in order to counter the lies and falsehoods of the companies”. Making connections internationally was another. “Given that we work in different parts of the world, we were able to facilitate contacts so that the delegation of affected communities in the Philippines could share their experiences with the same company.”

Complementary objectives

For Perez Rocha, another important factor in terms of solidifying the alliances with local groups, was to communicate early on that the focus of IPS’ work was on corporate power and the trade and investment system, and to explain how strengthening and lifting up a campaign like this one against the ISDS system in the global South contributed to both the Roundtable’s objectives in El Salvador and IPS’ broader international campaign goals. This common understanding of how these different goals complemented each other was crucial in order to globalise the struggle in ways that supported everyone’s overall objectives.

According to Jen Moore having clarity on long term objectives made it a lot easer to deal with differences in opinion regarding short-term tactics and objectives. For her clarity on the long term objective of banning metal mining outright in El Salvador “was fundamental for orienting the international campaign”.

Actions

For our interviewees, having a clear, powerfully amplified narrative that connected local and global issues on the one hand, and investing time, energy and resources in consolidating alliances on the other, were the foundation stones for building the successful international campaign. We also asked them about some of the specific actions that they felt were particularly effective at maintaining momentum and pressure.

They told us about attending the company’s AGMs to pressure shareholders; protests in Canada and Australia; actions at the World Bank offices in Washington DC and in San Salvador; an open letter to the head of the World Bank in 2011 signed by 244 international civil society organizations; another in 2014 signed by over 300 international groups; two Amicus Curiae/Friends of the Court briefs submitted to the ICSID tribunal in 2011 and in 2014; protests at the Canadian embassies both in El Salvador and in the US; the 2014 report Debunking 8 falsehoods by Pacific Rim/Oceana Gold; the 2014 Month of Action; the 2016 report on mining and supposed corporate social responsibility’ in El Salvador; and a more recent open letter to Oceana Gold demanding that it pay up and pack up signed by 280 organisations from around the globe.

While all of these campaign actions were significant, our interviewees put particular emphasis on some additional international initiatives.

Delegations and Visits – Weaving a web of Solidarity

The most significant of the several visits to El Salvador organised by the International Allies, according to our interviewees, was the 2013 fact-finding trip. A delegation of 45 people from 22 organizations in 12 countries participated in five days of conferences and strategy workshops and visits to mining-affected municipalities in the north of the country. A documentaryGold Or Water was made based on the experience and according to Perez Rocha, “it was a real milestone in the campaign as it strengthened the links between people from the international organizations with the Salvadoran groups”.

There were also several visits to the global North by Salvadorans. These included the 2013 North American Tour and the 2015 Stop the Suits Tour of Canada. For Jen Moore, this was important “to maintain the connections with people working in solidarity with El Salvador in Canada”. For her, bringing the voices of affected communities directly to the home countries of the company’s involved was a powerful way to demonstrate both to the public and to the authorities their “complicity in the structures that cause these problems”.

Once Oceana Gold had taken over Pacific Rim, Vidalina Morales also went on the Water Not Gold Tour of Australia in 2013. In collaboration with Australian trade unions and other civil society groups, she spent two weeks there spreading the story of the impact this Australian company was having on her home country. The International Allies also visited the Philippines in 2013 to strengthen connections with communities affected by Oceana Gold’s project and to document the impacts of mining there.

While international travel is often out of reach of most communities affected by extractive projects in Latin America, whenever there is a confluence of interests and objectives, and therefore available resources, these trips are a powerful way to consolidate alliances, build trust and apply pressure on the corporations involved in their own back yard.

Bringing The Case To International Fora

Another lesson for our interviewees was the importance of taking the case into international institutional spaces.

When five anti-mining activists were murdered between 2009 and 2011, the El Salvador case was brought before the Inter American Human Rights Commission which issued precautionary measures against the government of El Salvador. Next, the case was presented at the Permanent Peoples Tribunal (PPT) in Geneva Switzerland in 2014 with the help of groups like the Transnational Institute and the Institute for Policy Studies. For Saul Baños, while the rulings of the PPT are not legally binding, “they have political weight globally and are important ways to increase power”. A statement describing the human right violations of Pacific Rim-Oceana Gold was then submitted to the United Nations Human Rights Commission also in 2014, and the case has been taken up by advocates for a Binding Treaty for business and human rights at the UN.

Protest against the ISDS case in the USA

For Baños, all of these actions were important for raising the profile of the case and forcing it on to the government’s agenda “they [the government] are afraid of any kind of sanction that comes from an international body….this is why it’s important to further strengthen the international solidarity.”

Reaping the Harvest

The struggles of local communities all over Latin America in defence of their basic resources are never just local affairs. The extraction sites for gold or other minerals, or for oil and gas, are just the starting point on supply chains that begin in places like El Salvador, but often end in high-consumption economies far away – many in the global North. The abuses of those that control and profit from these supply chains rarely come up against a commensurate internationally coordinated response. In the case of El Salvador, they did.

As international movements, one of the major things that the campaign tells us is that when we have a clear, shared understanding of the ways in which local and international struggles relate to and complement each other, we can leverage the diversity of our relationships, privileges, power and resources to great effect.

In addition, the case leaves us with two other sets of overarching lessons.

The first relates to campaigning and strategy. We can never forget the basics of organising. Powerful narratives rooted in local realities, told and amplified well, are a powerful and unifying force. Relationships built on trust and intentional, committed (sometimes laborious) communications processes are the backbone of effective alliances. While international groups have no place dictating political strategy to local actors, this campaign showed the very effective ways that they can indirectly apply political pressure and the crucial role that they play in taking these struggles to the home countries of the corporations and institutions involved.

The second kind of lesson relates to the struggle ahead against the ISDS system itself. In its communiqué following the ISDS result, the El Salvador Roundtable stated that “El Salvador didn’t ‘win’ anything” – they just didn’t lose, there’s a difference. At the end of the day there is no corresponding mechanism for these communities to hold corporations legally accountable for their abuses. It’s a one-way street.

In the words of Vidalina Morales, “given the environmental damage, economic loss, social conflicts and corruption brought about by the corporation’s presence in El Salvador, they should have been the ones being sued…but no, the perpetrator sued the victim…in an upside down world.”

The Roundtable also described the ISDS system as “a form of blackmail” – a legal mechanism used to pressure governments with the threat of legal action, creating a ‘chilling effect’ on responsible public interest policies. Their rulings are based on the legal protections for investors granted in free trade and investment agreements and they have no obligation to balance these interests with social and environmental concerns.

The El Salvador context was relatively unique. The mining moratorium achieved there in 2009 meant that no new permits were issued in the intervening period, and the slow grind of national politics was able to run its course, and civil society pressure could slowly crystallise around an outright mining ban. But in other countries, where no such moratorium has existed, and where hundreds of permits or licenses have already been given, once communities and governments begin questioning the extractivist model, it’s too late. Changes to local or national laws result in a barrage of new ISDS cases – Colombia being a good case in point. El Salvador makes very clear that progress on our most urgent environmental issues is intimately connected to the dismantling of corporate power.

In terms of the path ahead on ISDS, Perez Rocha suggests two urgent tasks. One is to lift the veil on the details of settlements between governments and corporations in ISDS cases. The overall statistics of ISDS case results, excluding these settlements, are regularly used to defend the system. But if we can show the ways that these settlements also force governments to put corporate interests over the public good, we can make even clearer the injustices at the heart of the system.

The second is to continue to make local campaigns emblematic. Pacific Rim/Oceana Gold Vs El Salvador and other emblematic cases need be replaced with new high profile cases. He sees a real willingness to continue connecting other local struggles -around extractive projects in particular– to the global campaigns against corporate power and the free trade and investment regime.

In the words of Pedro Cabezas, “we have to continue globalizing the struggle!”.

1 In the extractive industries, the majority of ISDS cases end with a settlement of some sort i.e. policy concessions to the corporations – this is one of the least understood and most nefarious results of the whole ISDS system

Corporate Power Doesn’t Always Win: Remembering the FTAA

In retrospect, it sounds like a dream come true: a mobilized population, intercontinental organizing, cooperative left-wing governments — all culminating in the downfall of a major corporate-friendly trade agreement that would have covered a large chunk of the global economy.

It wasn’t just a dream. The proposed Free Trade Area of the Americas, or FTAA — meant to span all of North and Latin America — went down in defeat in 2005.

Now, over a decade later, as we face two other upcoming trade deals — the Transpacific Partnership (TPP) uniting 12 Pacific Rim countries, and the Transatlantic Trade and Investment Partnership (TTIP) connecting the United States and Europe — the FTAA victory has a lot to teach us about successful social movement strategies, and the challenges of building and sustaining power.

Not Just a Trade Deal

In 1994, Western hemisphere elites were riding high. The North American Free Trade Agreement, or NAFTA — which stitched the United States, Canada, and Mexico into a trade bloc — had been signed in January. By December, delegates at the first Summit of the Americas came up with a new, even more ambitious plan.

Meeting in Miami, the presidents from 34 countries (every nation in the Americas except Cuba) resolved to create what U.S. president George H.W. Bush had envisioned in 1990 as a “free trade zone stretching from the port of Anchorage to the Tierra del Fuego.” With a market of 800 million consumers and a GDP of $11.5 billion — 40 percent of the world’s total at the time — the FTAA promised to become the largest free trade area in the world. Those assembled decided to begin negotiations in earnest, with the aim of making FTAA a reality by 2005.

Having seen the problems with NAFTA — which included major labor dislocations and new legal mechanisms that undermined all manner of consumer and environmental protections — civil society organizations were concerned. As they began to get access to draft chapters of the FTAA, their analyses pointed to grave implications for food security, the availability of medicines, water, and basic services, and access to scientific knowledge itself.

One of the biggest concerns was the investment chapter of the FTAA. Just like NAFTA’s Chapter 11, it granted expansive new rights to foreign investors, which they could enforce through the now-infamous Investor-State Dispute Settlement Mechanism (ISDS). That system allows corporations to bypass national courts and sue countries directly in private international arbitration tribunals when they feel that their investments — and profits — are being affected by a public policy. Social organizations considered this a direct attack on sovereignty and democracy.

Controversy over ISDS bolstered the popular perception that this was not an agreement for trade or integration based on the common good, but rather an expansionist project into Latin America — with its huge consumer market and immense natural resources — based on the commercial and corporate interests of the United States.

The consequent mobilization against the deal was enormous and decisive. At the fourth Summit of the Americas, held in Mar del Plata, Argentina in November 2005 — the very year in which the FTAA was supposed to be inaugurated — the proposed trade deal was pronounced dead.

Defeating the FTAA

While the social organizations’ analysis of the proposed trade agreement might have been on point, it’s a big leap from robust critique to outright victory. What strategies did social movements use?

The first was to construct a diverse yet united movement with a common goal. Building on the experience and the networks created through U.S., Mexican, and Canadian organizing against NAFTA, the movement began to coalesce during the late 1990s into the Hemispheric Social Alliance, or HSA. The alliance united diverse sectors — including indigenous, labor, student, environmental, and women’s movements, as well as sympathetic NGOs and others — from across North and Latin America.

Among the HSA’s most important activities were People’s Summits, scheduled to coincide with rounds of FTAA negotiations. These were popular assemblies where discussion could happen and strategic lines of struggle could be defined. The summits pushed the movement to develop a common agenda and construct a common language. According to participants, one very important decision was to concentrate on what members found agreement on, and leave areas of disagreement open for discussion. The summits were also moments for filling the streets of the host cities with debate and color — and for dialogue with local people about the ways in which the FTAA was going to affect their lives.

By closely examining the impact of prior trade agreements such as NAFTA, and the drafts of the proposed FTAA text, the HSA grounded its opposition to the deal in high quality analysis. But in order to persuade the public, this had to be accompanied by effective campaign messaging. “No to the FTAA!! Yes to Life!! Another America is Possible!!” became ubiquitous across the region — from the banners displayed in demonstrations to buttons, hats, and pamphlets distributed in the streets.

Also important was the ability of the alliance to propose alternatives. The movement wasn’t opposed to the integration of the Americas. Rather, underlying the “Alternative for the Americas” proposal was a vision for an alternative to neoliberal integration based on principles of democracy, sovereignty, social wellbeing, equality, and sustainability.

A final key factor in defeating the FTAA was the ability to build on alliances with leftist governments in the region and bring them into the opposition camp. Leaders with critical viewpoints toward “free trade” and many with close ties to social movements were coming to power in Brazil, Argentina, Bolivia, and Venezuela. ” It is often assumed that it was the progressive governments which defeated the FTAA,” notes Alberto Arroyo from the Mexican Free Trade Action Network. But the truth is that it was the movements that brought these governments to power, and later the movements were able to show these new governments the seriousness of what was happening.”

By 2005, the regional balance of power had shifted, and progressive governments — in response to sustained social movement pressure — were changing their positions. Despite the efforts of President George W. Bush to resuscitate the agreement in Argentina, the summit that year marked the death knell for the FTAA. The social movements had won a major victory and celebrations took over the streets.

There was plenty for the social movements to rejoice about. But organizers were neglecting at their peril the scope of challenges to come.

Corporate Interests Regroup

It didn’t take long to see that corporations and free-trade oriented governments had designed a new way to expand the system.

Undaunted by the setback, corporate interests shifted strategies, moving ahead with bilateral and other multilateral free trade agreements, or FTAs. For example, the United States signed FTAs with Chile, Peru, Colombia, and Panama, as well as with a bloc of Central American countries and the Dominican Republic (DR-CAFTA). Similarly, the EU signed an FTA with Mexico in 2000. Then, after its failure to negotiate a free trade agreement with the Andean Community of Nations, it signed FTAs with Colombia and Peru.

Initially, only the countries most open to neoliberal economics — Chile, Peru, Colombia, and Central American nations — agreed to this new wave of FTAs. In contrast, those countries where leftist governments had maintained close alliances with social movements in the fight against FTAA — Venezuela and MERCOSUR nations such as Argentina and Brazil — stayed away.

But over time, even those latter countries have begun to accede to corporate power. Strikingly, Ecuador — formerly a very vocal critic — joined Colombia and Peru’s FTA with Europe. Brazil — the one country in Latin America that for years had avoided entering bilateral trade agreements — signed an FTA with Mexico, and is moving toward others. MERCOSUR (consisting of Argentina, Brazil, Paraguay, Uruguay, and Venezuela) and Brazil are negotiating a free trade accord with the European Union.

Enrique Daza from the Colombian Free Trade Action Network notes a slow but steady strategy on the part of corporations: “They have an agenda that is not maximalist… they are willing to take gradual steps to slowly implement their policy.”

Opportunities for corporations emerge in particular when social movements lose their strength.

After the Victory, the Decline

With all of these free trade agreements being signed across the region, it’s worth asking: What happened to the social movement that only a short while earlier had defeated the FTAA?

The movement’s inability to stay united and independent from leftist governments post-FTAA worked against it. In 2004, Cuba and Venezuela spearheaded the Bolivarian Alliance for the Peoples of Our America (ALBA). Not only did ALBA’s vision grow out of HSA proposals, but it established a Social Movements Council as the “principle mechanism that facilitates integration and direct social participation.”

As HSA turned toward supporting this grouping of “pink tide” governments, it lost some of its critical edge. In the words of Arroyo, “remaining silent in order not to weaken governments in relation to domestic right-wing groups was a mistake.” Lamenting that “losing autonomy weakens the movement for the next stage of struggle,” he observes, “at the end of the day the subjects of change are the people, not the governments.”

Having lost both its international unity and its independence from left-wing Latin American governments, the movement was prepared neither for the corporate counteroffensive nor for sustaining itself during periods of decline.

Lessons for Current Struggles

By 2016 it’s become clear that big inter-regional agreements — combined with new bilateral trade and investment deals — are the most prominent way to write the rules of the global trade system in the 21st century. What the United States and Europe couldn’t do within the World Trade Organization or with the failed Multilateral Agreement on Investment in the 1990s, they’re doing country by country, region by region.

Now comes the real moon shot. If the TPP and TTIP are fully implemented, they would cover 60 percent of global GDP and 75 percent of global trade, as the Transnational Institute’s Susan George indicates.

A cohesive trans-continental social movement like the kind that coalesced around the FTAA is unlikely to form again. But current movements fighting trade agreements can draw important lessons from the anti-FTAA movement. As we engage in these struggles, what does the successful FTAA campaign tell us about how to build power in our respective domestic contexts?

One lesson is to harness the power of groups that are already mobilized. The FTAA effort effectively drew on Latin Americans’ anger and frustration following years of structural adjustment, austerity, privatizations, and deregulation, and built on a growing anti-imperialist consciousness. It was able to channel the energies of the groups already mobilized on these issues into the FTAA campaign.

Although today’s political context is very different, connecting our analysis and messaging on the TPP to the concerns of current movements in the TPP countries will help to maximize our power. Examples include the labor movement working on issues of inequality, jobs, and the minimum wage; groups mobilized on issues of digital privacy in the wake of the NSA scandal; student movements in Chile, Mexico, and the United States; and the environmental movement mobilized around the Keystone XL pipeline and fracking in the United States, tar sands in Canada, nuclear power in Japan, coal campaigning in Australia, and climate change everywhere.

Another related lesson is the importance of making the abstract concrete. The FTAA campaign effectively connected analysis of hard-to-understand and seemingly irrelevant aspects of the draft texts — such as investor-state dispute procedures — with specific concerns of different domestic sectors.

Now that the final text of the TPP is available, there’s an urgent need to do the same.

That means, for example, communicating to public health advocacy groups and health professionals’ organizations about how intellectual property provisions and extended patent protections for pharmaceuticals will affect access to medicines. It means making it much clearer for the environmental movement how energy and climate legislation — such as restrictions on fracking, coal, and nuclear power — could be undermined by investor-state lawsuits, like the $15 billion suit just launched against the US government for blocking the Keystone XL pipeline. And it means showing small and medium-sized business associations how restrictions on procurement will prevent governments from favouring local producers.

Whack-a-Mole

ISDS was a key issue in provoking outright rejection of the FTAA. Now, over ten years later, we have much more evidence to demonstrate, in very concrete ways, the risk that this system represents for a wide array of urgent public issues. With the high profile of the ISDS issue in Europe currently, there is a multitude of qualityaccessible campaign materials that can be used to this end — including a diverse array of voices, from conservative think tanks to trade unionists, joined in unlikely alliance against it.

Finally, we should note the importance of creating alternative proposals. The anti-FTAA campaign was very clear that they were not against the integration of the Americas. Rather, they proposed a different kind of integration that was not based on the interests of corporate profits, unhindered competition, and a race to the bottom.

While regional integration in Latin America has been slow, if the FTAA had been signed it may well have made these initiatives impossible, as regional economies would have been pulled even more tightly into Washington’s orbit. Obama was quite explicit about his intention to re-write the rules for international trade in these new deals. Highlighting the geo-strategic implications of the TPP, including the potential impact on alternative regional integration processes in Asia and Latin America, may also give us some leverage at the domestic level.

The FTAA campaign undoubtedly holds valuable lessons for our current efforts. However, what happened in Latin America subsequently — when corporate power regrouped and went on the counterattack in the face of a weakened civil society — tells us something even more important about the nature of the challenge we face.

Even if we defeat the TPP, challenging corporate power is like playing whack-a-mole: it will find other ways to expand. So while we fight our local battles, and continue building a globalized movement of local struggles, we mustn’t lose sight of this bigger question about how we dismantle corporate power. The calls for a restructured, fairer global economy are growing louder by the day. While we have our mallets poised and ready, we also need to continue planning how to put the mole out of action for good.